AB 1821, as introduced, Maienschein. Sex offenses: disabled victims.
(1) Existing law, as amended by Proposition 83, the Sexual Predator Punishment and Control Act (Jessica’s Law), approved by the voters at the November 7, 2006, statewide general election, makes a defendant subject to imprisonment in the state prison for 25 years to life if convicted of certain crimes, including rape, sexual penetration, sodomy, oral copulation, continuous sexual abuse of a child, or rape, spousal rape, or sexual penetration in concert, if certain circumstances were present, including, among other things, in the commission of that offense, any person kidnapped the victim, tortured the victim, or committed the offense during the commission of a burglary, as specified. Existing law also makes a defendant subject to imprisonment in the state prison for 15 years to life if convicted of certain crimes, including rape, sexual penetration, sodomy, oral copulation, continuous sexual abuse of a child, or rape, spousal rape, or sexual penetration in concert, if certain circumstances were present, including, among other things, in the commission of that offense any person, except as specified in the provisions above, kidnapped the victim, committed the offense during the commission of a burglary, or used a dangerous or deadly weapon in the commission of the offense. Proposition 83 provides that the Legislature may amend the provisions of the act to expand the scope of their application or increase the punishment or penalties by a statute passed by a majority vote of each house of the Legislature.
This bill would add the crimes of rape, sexual penetration, sodomy, and oral copulation, perpetrated against a person who is incapable, because of a mental disorder or developmental or physical disability, of giving legal consent, to the above provisions, if the victim is developmentally disabled, as defined. By applying the above enhancements to these crimes, this bill would impose a state-mandated local program.
(2) Existing law makes a defendant subject to imprisonment in the state prison for 25 years to life if convicted of certain crimes, including rape, spousal rape or sexual penetration in concert, sexual penetration, sodomy, or oral copulation if certain circumstances were present, including, among other things, in the commission of that offense, any person kidnapped the victim, committed the offense during the commission of a burglary, or used a dangerous or deadly weapon in the commission of the offense, or under other specified circumstances, and the crime was committed against a minor 14 years of age or older.
This bill would add the crimes of rape, sexual penetration, sodomy, and oral copulation, perpetrated against a person who is incapable, because of a mental disorder or developmental or physical disability, of giving legal consent, to the above provisions, if the victim is developmentally disabled, as defined. By applying the above enhancements to these crimes, this bill would impose a state-mandated local program.
(3) Existing law requires that a person who commits certain enumerated crimes, including rape, sodomy, oral copulation, and sexual penetration, against a person who is 65 years of age or older, or against a person who is blind, deaf, developmentally disabled, a paraplegic, or a quadriplegic, or against a person who is under 14 years of age, receive a one-year sentence enhancement and requires that any person having a prior conviction for any of the enumerated offenses receive a 2-year sentence enhancement.
This bill would add to the enumerated list of crimes rape, sodomy, oral copulation, and sexual penetration, perpetrated against a person who is incapable, because of a mental disorder or developmental or physical disability, of giving legal consent. By applying the above enhancements to these crimes, this bill would impose a state-mandated local program.
(4) The California Constitution requires the state to reimburse local agencies and school districts for certain costs mandated by the state. Statutory provisions establish procedures for making that reimbursement.
This bill would provide that no reimbursement is required by this act for a specified reason.
Vote: majority. Appropriation: no. Fiscal committee: yes. State-mandated local program: yes.
The people of the State of California do enact as follows:
Section 667.61 of the Penal Code is amended to
2read:
(a) Except as provided in subdivision (j), (l), or (m),
4any person who is convicted of an offense specified in subdivision
5(c) under one or more of the circumstances specified in subdivision
6(d) or under two or more of the circumstances specified in
7subdivision (e) shall be punished by imprisonment in the state
8prison for 25 years to life.
9(b) Except as provided in subdivision (a), (j), (l), or (m), any
10person who is convicted of an offense specified in subdivision (c)
11under one of the circumstances specified in subdivision (e) shall
12be punished by imprisonment in the state prison for 15 years to
13life.
14(c) This section shall apply to any of the following offenses:
15(1) Rape, in violation of paragraph (2) or (6) of subdivision (a)
16of Section 261.
17(2) Spousal rape, in violation of paragraph (1) or (4) of
18subdivision (a) of Section 262.
19(3) Rape, spousal rape, or sexual penetration, in concert, in
20violation of Section 264.1.
21(4) Lewd or lascivious act, in violation of subdivision (b) of
22Section 288.
23(5) Sexual penetration, in violation of subdivision (a) of Section
24289.
25(6) Sodomy, in violation of paragraph (2) or (3) of subdivision
26(c), or subdivision (d), of Section 286.
27(7) Oral copulation, in violation of paragraph (2) or
(3) of
28subdivision (c), or subdivision (d), of Section 288a.
29(8) Lewd or lascivious act, in violation of subdivision (a) of
30Section 288.
P4 1(9) Continuous sexual abuse of abegin delete child,end deletebegin insert
childend insert in violation of
2Section 288.5.
3(10) Rape, in violation of paragraph (1) of subdivision (a) of
4Section 261, if the victim was “developmentally disabled,” as
5defined in subdivision (d) of Section 667.9, and that fact is alleged
6in the accusatory pleading and either admitted by the defendant
7in open court or found to be true by the trier of fact.
8(11) Sexual penetration, in violation of subdivision (b) of Section
9289, if the victim was “developmentally disabled,” as defined in
10subdivision (d) of Section 667.9, and that fact is alleged in the
11accusatory pleading and either admitted by the defendant in open
12court or found to be true by the trier of fact.
13(12) Sodomy, in violation of subdivision (g) of Section 286, if
14the victim was “developmentally disabled,” as defined in
15subdivision (d) of Section 667.9, and that fact is alleged in the
16accusatory pleading and either admitted by the defendant in open
17court or found to be true by the trier of fact.
18(13) Oral copulation, in violation of subdivision (g) of Section
19288a, if the victim was “developmentally disabled,” as defined in
20subdivision (d) of Section 667.9, and that fact is alleged in the
21accusatory pleading and either admitted by the defendant in open
22court or found to be true by the trier of fact.
23(d) The following circumstances shall apply to the offenses
24specified in subdivision (c):
25(1) The defendant has been previously convicted of an offense
26specified in subdivision (c), including an offense committed in
27another jurisdiction that includes all of the elements of an offense
28specified in subdivision (c).
29(2) The defendant kidnapped the victim of the present offense
30and the movement of the victim substantially increased the risk of
31harm to the victim over and above that level of risk necessarily
32inherent in the underlying offense in subdivision (c).
33(3) The defendant inflicted aggravated mayhem or torture on
34the victim or another person in the commission of the present
35offense in violation of Section 205 or 206.
36(4) The defendant committed the present offense during the
37commission of a burglary of the first degree, as defined in
38
subdivision (a) of Section 460, with intent to commit an offense
39specified in subdivision (c).
P5 1(5) The defendant committed the present offense in violation
2of Section 264.1, subdivision (d) of Section 286, or subdivision
3(d) of Section 288a, and, in the commission of that offense, any
4person committed any act described in paragraph (2), (3), or (4)
5of this subdivision.
6(6) The defendant personally inflicted great bodily injury on
7the victim or another person in the commission of the present
8offense in violation of Section 12022.53, 12022.7, or 12022.8.
9(7) The defendant personally inflicted bodily harm on the victim
10who was under 14 years of age.
11(e) The following circumstances shall apply to the offenses
12specified in subdivision (c):
13(1) Except as provided in paragraph (2) of subdivision (d), the
14defendant kidnapped the victim of the present offense in violation
15of Section 207, 209, or 209.5.
16(2) Except as provided in paragraph (4) of subdivision (d), the
17defendant committed the present offense during the commission
18of a burglary in violation of Section 459.
19(3) The defendant personally used a dangerous or deadly weapon
20or a firearm in the commission of the present offense in violation
21of Section 12022, 12022.3, 12022.5, or 12022.53.
22(4) The defendant has been convicted in the present case or
23cases of committing an offense specified in subdivision (c) against
24more than one victim.
25(5) The defendant engaged in the tying or
binding of the victim
26or another person in the commission of the present offense.
27(6) The defendant administered a controlled substance to the
28victim in the commission of the present offense in violation of
29Section 12022.75.
30(7) The defendant committed the present offense in violation
31of Section 264.1, subdivision (d) of Section 286, or subdivision
32(d) of Section 288a, and, in the commission of that offense, any
33person committed any act described in paragraph (1), (2), (3), (5),
34or (6) of this subdivision or paragraph (6) of subdivision (d).
35(f) If only the minimum number of circumstances specified in
36subdivision (d) or (e) that are required for the punishment provided
37in subdivision (a), (b), (j), (l), or (m) to apply have been pled and
38proved, that circumstance or those circumstances shall be used as
39the basis for
imposing the term provided in subdivision (a), (b),
40(j), (l), or (m) whichever is greater, rather than being used to impose
P6 1the punishment authorized under any other provision of law, unless
2another provision of law provides for a greater penalty or the
3punishment under another provision of law can be imposed in
4addition to the punishment provided by this section. However, if
5any additional circumstance or circumstances specified in
6subdivision (d) or (e) have been pled and proved, the minimum
7number of circumstances shall be used as the basis for imposing
8the term provided in subdivision (a), (j), or (l) and any other
9additional circumstance or circumstances shall be used to impose
10any punishment or enhancement authorized under any other
11provision of law.
12(g) Notwithstanding Section 1385 or any other provision of law,
13the court shall not strike any allegation, admission, or finding of
14any of the circumstances specified in subdivision (d) or
(e) for any
15person who is subject to punishment under this section.
16(h) Notwithstanding any other provision of law, probation shall
17not be granted to, nor shall the execution or imposition of sentence
18be suspended for, any person who is subject to punishment under
19this section.
20(i) For any offense specified in paragraphs (1) to (7), inclusive,
21of subdivision (c), or in paragraphs (1) to (6), inclusive, of
22subdivision (n), the court shall impose a consecutive sentence for
23each offense that results in a conviction under this section if the
24crimes involve separate victims or involve the same victim on
25separate occasionsbegin insert,end insert as defined in subdivision (d) of Section 667.6.
26(j) (1) Any person who
is convicted of an offense specified in
27subdivision (c), with the exception of a violation of subdivision
28(a) of Section 288, upon a victim who is a child under 14 years of
29age under one or more of the circumstances specified in subdivision
30(d) or under two or more of the circumstances specified in
31subdivision (e), shall be punished by imprisonment in the state
32prison for life without the possibility of parole. Where the person
33was under 18 years of age at the time of the offense, the person
34shall be punished by imprisonment in the state prison for 25 years
35to life.
36(2) Any person who is convicted of an offense specified in
37subdivision (c) under one of the circumstances specified in
38subdivision (e), upon a victim who is a child under 14 years of
39age, shall be punished by imprisonment in the state prison for 25
40years to life.
P7 1(k) As used in this section, “bodily harm” means any
substantial
2physical injury resulting from the use of force that is more than
3the force necessary to commit an offense specified in subdivision
4(c).
5(l) Any person who is convicted of an offense specified in
6subdivision (n) under one or more of the circumstances specified
7in subdivision (d) or under two or more of the circumstances
8specified in subdivision (e), upon a victim who is abegin delete minorend deletebegin insert minor,end insert
9 14 years of age orbegin delete olderend deletebegin insert older,end insert shall be punished by imprisonment
10in the state prison for life without the possibility of parole. If the
11person who was convicted was under 18
years of age at the time
12of the offense, he or she shall be punished by imprisonment in the
13state prison for 25 years to life.
14(m) Any person who is convicted of an offense specified in
15subdivision (n) under one of the circumstances specified in
16subdivision (e) against abegin delete minorend deletebegin insert minor,end insert 14 years of age orbegin delete olderend delete
17begin insert older,end insert shall be punished by imprisonment in the state prison for
1825 years to life.
19(n) Subdivisions (l) and (m) shall apply to any of the following
20offenses:
21(1) Rape, in violation of paragraph (2) of subdivision (a) of
22Section 261.
23(2) Spousal rape, in violation of paragraph (1) of subdivision
24(a) of Section 262.
25(3) Rape, spousal rape, or sexual penetration, in concert, in
26violation of Section 264.1.
27(4) Sexual penetration, in violation of paragraph (1) of
28subdivision (a) of Section 289.
29(5) Sodomy, in violation of paragraph (2) of subdivision (c) of
30Section 286, or in violation of subdivision (d) of Section 286.
31(6) Oral copulation, in violation of paragraph (2) of subdivision
32(c) of Section 288a, or in violation of subdivision (d) of Section
33288a.
34(7) Rape, in violation of paragraph (1) of subdivision (a) of
35Section 261, if the victim was “developmentally disabled,” as
36defined in subdivision (d) of Section 667.9, and that fact is alleged
37in the accusatory pleading and either admitted by the defendant
38in open court or found to be true by the trier of fact.
39(8) Sexual penetration, in violation of subdivision (b) of Section
40289, if the victim was “developmentally disabled,” as defined in
P8 1subdivision (d) of Section 667.9, and that fact is alleged in the
2accusatory pleading and either admitted by the defendant in open
3court or found to be true by the trier of fact.
4(9) Sodomy, in violation of subdivision (g) of Section 286, if the
5victim was “developmentally disabled,” as defined in subdivision
6(d) of Section
667.9, and that fact is alleged in the accusatory
7pleading and either admitted by the defendant in open court or
8found to be true by the trier of fact.
9(10) Oral copulation, in violation of subdivision (g) of Section
10288a, if the victim was “developmentally disabled,” as defined in
11subdivision (d) of Section 667.9, and that fact is alleged in the
12accusatory pleading and either admitted by the defendant in open
13court or found to be true by the trier of fact.
14(o) The penalties provided in this section shall apply only if the
15existence of any circumstance specified in subdivision (d) or (e)
16is alleged in the accusatory pleading pursuant to this section, and
17is either admitted by the defendant in open court or found to be
18true by the trier of fact.
Section 667.9 of the Penal Code is amended to read:
(a) Any person who commits one or more of the crimes
21specified in subdivision (c) against a person who is 65 years of
22age or older, or against a person who is blind, deaf,
23developmentally disabled, a paraplegic, or a quadriplegic, or
24against a person who is under the age of 14 years, and that
25disability or condition is known or reasonably should be known
26to the person committing the crime, shall receive a one-year
27enhancement for each violation.
28(b) Any person who commits a violation of subdivision (a) and
29who has a prior conviction for any of the offenses specified in
30subdivision (c), shall receive a two-year enhancement for each
31violation in addition to the sentence provided under Section 667.
32(c) Subdivisions (a) and (b) apply to the following crimes:
33(1) Mayhem, in violation of Section 203 or 205.
34(2) Kidnapping, in violation of Section 207, 209, or 209.5.
35(3) Robbery, in violation of Section 211.
36(4) Carjacking, in violation of Section 215.
37(5) Rape, in violation of paragraphbegin delete (2)end deletebegin insert (1), (2),end insert or (6) of
38subdivision (a) of Section 261.
39(6) Spousal rape, in violation
of paragraph (1) or (4) of
40subdivision (a) of Section 262.
P9 1(7) Rape, spousal rape, or sexual penetration in concert, in
2violation of Section 264.1.
3(8) Sodomy, in violation of paragraph (2) or (3) of subdivision
4(c), or subdivisionbegin delete (d),end deletebegin insert
(d) or (g),end insert of Section 286.
5(9) Oral copulation, in violation of paragraph (2) or (3) of
6subdivision (c), or subdivisionbegin delete (d),end deletebegin insert (d) or (g),end insert of Section 288a.
7(10) Sexual penetration, in violation of subdivision (a)begin insert or (b)end insert
8 of Section 289.
9(11) Burglary of the first degree, as defined in Section 460, in
10violation of Section 459.
11(d) As used in this section, “developmentally disabled” means
12a severe, chronic disability of a
person, which is all of the
13following:
14(1) Attributable to a mental or physical impairment or a
15combination of mental and physical impairments.
16(2) Likely to continue indefinitely.
17(3) Results in substantial functional limitation in three or more
18of the following areas of life activity:
19(A) Self-care.
20(B) Receptive and expressive language.
21(C) Learning.
22(D) Mobility.
23(E) Self-direction.
24(F) Capacity for independent living.
25(G) Economic self-sufficiency.
No reimbursement is required by this act pursuant to
27Section 6 of Article XIII B of the California Constitution because
28the only costs that may be incurred by a local agency or school
29district will be incurred because this act creates a new crime or
30infraction, eliminates a crime or infraction, or changes the penalty
31for a crime or infraction, within the meaning of Section 17556 of
32the Government Code, or changes the definition of a crime within
33the meaning of Section 6 of Article XIII B of the California
34Constitution.
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